Am I allowed to record my own telephone conversations ?

Disclaimer

The information is presented in good faith but no responsibility is
accepted for the accuracy of this information. You should not
rely on it legally. If in doubt, consult a solicitor. This information applies the UK only. The information here is not presented on behalf of any company or official body.

Introduction

This question comes up time and time again in Usenet newsgroups. Usually,
as is typical with Usenet, people claim one thing, but offer no evidence, then someone else claims the opposite, so beware free advice :-).

The following information was based around that available in 1997. The law and Oftel guidelines may have changed considerably since then.

Summary

In the following paragraphs, we explain the following :

Point 1 : The term "telecommunications system" includes even a single telephone in your house.

Point 2 : Operation of a telecommunications system without a licence is a criminal offence. i.e. you need a licence.

Point 3 : All telecomms users are automatically granted a licence to operate a phone system, without having to individually apply for one.

Point 4 : Any licencee is automatically bound by the terms of the licence as issued by Oftel/DTI.

Point 5 : The licence states that all parties must be informed before recording can take place.

Point 6 : Action may be taken against any person who contravenes the terms of the licence.

Why would you want to record someone ?

The most common reason for wanting to record calls is accuracy; where business or financial transactions are being conducted, it may be very hekpful to refer back to audio transcripts, either to verify details taken down or to prove that something was said and agreed to. Other people record calls in order to check their own, or their staff's telephone manner and performance. Mistakes are always made - none of us are perfect, but at least with a recording one can sometimes accurately determine who made the mistake. Knowing one is being recorded can often have a beneficial effect on one's accuracy. In my experience, there is a difference between someone 'talking rubbish through ignorance whilst trying to be helpful' and someone 'deliberately lying'.

Another quick comment : Some people seem to want to record
people without their knowledge to deliberately entrap them
into saying/admitting something so that the tape transcript
can then be used against them. Some people even go so far to ask
deliberately misleading questions to confuse/goad the other
party, who might just be doing their best ! As I said above, informing the other party of the recording is likely to make them more careful and
accurate in the first place, thus AVOIDING any mistakes altogether.
So, in some circumstances, unless you're just plain dishonourable and you WANT people to make mistakes so that you can 'sue' them, you might
decide that advising people of the recording works in your favour ! On the other hand, some people/companies are in the habit on continuously making claims which they know to be false, and they should be stopped.

The 'Evidence'

NOTE : Extracts from the Act and the licences are further down this document, for easy cross reference. In this section, the Act is taken to mean the Telecommunications Act 1984.

In the Act, in Section 1, Part 4. (1) the term "telecommunications
system " is defined to include any kind of telecomms system capable of
carring voice, data or pictures. That would include even a single instrument
such as a simple telephone in your home, as well as more complete systems. So,

Point 1 : The term "telecommunications system" includes even a single telephone in your house.

Under the Act, you can only use or operate a telephone system (including a
simple phone in your home) if you have a licence (Section 5, Part 2).

So, on the basis of this, :

Point 2 : Operation of a telecommunications system without a licence is a criminal offence. i.e. you need a licence.

Section 7, Part (3) states that the licence can be granted to a 'class' of
people - i.e. rather than each person or premises having to be individually
licences (as with, say, TV licences). i.e. the licence can be issued to a
class (group) of people and they are then all automatically licenced. So :

Point 3 : All telecomms users are automatically granted a licence to operate a phone system, without having to individually apply for one.

Section 7 of the Act also specifies that the licence is granted, maintained
and varied by Oftel/DTI (referred to as The Director / Secretary of State).
It makes no difference who your telecomms provider is, be it BT, C&W or anyone
else. Section 7 (Clause 6(a)) also states that any licencee is bound by
whatever terms are considered appropriate to include within that licence.
So, on this basis :

Point 4 : Any licencee is automatically bound by the terms of the licence as issued by Oftel/DTI.

So, having established that under the act one needs a licence, the final
piece of the jigsaw is the licence terms themselves. With regard to recording
a telephone conversation, section 7.3 (quoted in full later) states that the
Licensee shall make every reasonable effort to inform all parties before
recording a call. So :

Point 5 : The licence states that all parties must be informed before recording can take place.

Finally, Section 16, Parts (1) and (2) state what action may be taken to ensure
compliance, so :

Point 6 : Action may be taken against any person who contravenes the terms of the licence.

Criminality & Legality

Although a breach of the Telecomms Act directly is a criminal offence, a breach of a licence condition is not in itself a criminal offence. However, failure to obey an Order requiring the licensee to comply with licence conditions may be treated as a contempt of court, punishable under
criminal law. Source : Usenet article 01bd062c$3b381220$01622cc3@itunit in uk.telecom by Frank Phillips, Oftel).

So, it appears that because the licence terms are not within the 1984 act, it is not actually 'illegal' per se to breach the licence. However, to claim plainly " It's not illegal " would be misleading if stated out of context (see 'Personal Opinion' above).

Tapping into, recording or listening into a conversation where neither party is informed is illegal (I think under the Interception of Communications Act). There are also other laws governing wireless transmission (cellphones etc). As mentioned
in the introduction, other Acts may pertain to any court case too.

Comment from Oftel

This message was taken from usenet uk.telecom as a response
to my original posting of this information :

Your extracts of the TSL and SPL and guidance are of course accurate. Recording calls without informing callers is a breach of the licence. There
are two schools of legal thought. If you breach the licence OFTEL could
under S16 of the T Act make an order against you requring you to comply.
Failure to then comply could lead to civil action by the damaged party or
by OFTEL themselves.

The second school of thought says that failure to comply with the class
licence means that you are running an unlicensed system, which is a
criminal offence under the T Act, fine UKP5000.

In practice, you are more likely to get a warning letter from my staff,
reminding you of your obligations.

pwalker.oftel@gtnet.gov.uk

Further Explanation (Source : Oftel)

Under the 1984 Telecommunications Act, a requirement was introduced that
to use or run a telecommunications system, one must have a licence. A
'telecommunications system' can be a single telephone instrument or a
whole network. There are two types of licences (1) The Telecommunication
Services Licence (TSL), which is required by all telecommunications
operators and (2) The Self Provision Licence (SPL) which is required by
all telephone users, and granted by default/automatically to all phone
users. This licence includes residential users. Thus, if you are using a
telephone on the PSTN, you are bound by the terms of the SPL. The SPL and
TSL are regulated by Oftel and periodically amended.

On 9 September 1996 revised versions of the Telecommunication
Services Licence (TSL) and the SelfProvision Licence (SPL) came into
force. A General Variation, NS/V/1235/T/100023 (GV No 23) was issued
in March 1995 which permitted the standard warn tone built
into equipment capable of recording monitoring or intruding into
twoway live speech telephone calls to be replaced by an alternative
form of warning (see OFTEL Update SA67). The revised versions
of the TSL and SPL contain a new condition, relating to the Privacy
of Messages (Condition 7). A Variation issued on 10 February 1997
aligns the requirements of GV No 23 with those of this newcondition,
thus ensuring that users complying with it will automatically
also meet the requirements of the General Variation.

Extract from the SPL and TSL (Source : Oftel)

PRIVACY OF MESSAGES

(Note : The word 'shall' is used, not 'should'. In law, I understand that this defines a compulsory act rather than a recommendation).

7.1 The Licensee shall not use or allow to be used any Apparatus
comprised in or connected to the Applicable Systems (except for Apparatus
connected to or comprised in the Applicable Systems for the purpose of law
enforcement or in the interests of national security) which is capable of
recording silently monitoring (except for monitoring where the meaningful
content of the Message is not monitored) or intruding into Live Speech
Telephone Calls unless he complies with paragraphs 7.3 and 74. Thus
paragraph shall not apply if the Licensee is an Emergency Organisation or
if the Director has consented to the Licensee not complying with any or
all of paragraphs 7.3 and 74 and has not withdrawn that consent.

7.2 The provisions of each consent given under paragraph 7.1 shall be
entered in the register kept by the Director for the purpose of section 19
of the Act.

7.3 The Licensee shall make every reasonable effort to inform parties
to whom or by whom a Live Speech Telephone Call is transmitted before
recording, silent monitoring or intrusion into such Call has begun that
the Live Speech Telephone Call is to be or may be recorded, silently
monitored or intruded into.

7.4 The Licensee shall maintain a record of the means by which the
parties to whom or by whom a Live Speech Telephone Call is transmitted
have been informed that such Call is to be or may be recorded, silently
monitored or intruded into. The Licensee shall furnish to the Director
such information on request.

EXPLANATION of Condition 7

Condition 7 : Privacy of messages

17 This is a new condition in the TSL and SPL which applies in
circumstances where you wish to use telecommunications apparatus comprised
in or connected to your system to record, silently monitor or intrude into
live speech telephone calls. (It does not apply where the apparatus in
question is not telecommunications apparatus, i.e. is not apparatus that
has been constructed or adapted for use in transmitting or receiving
telecommunications messages). Silent 'monitoring is the establishment of a
receive only transmission path to a third terminal, enabling a third party
to hear the call. Intrusion is the establishment of a both-way speech
transmission to another terminal enabling a third party to hear and be
heard by at least one of the other parties to the call. The condition does
not apply to the monitoring of telephone calls for systems control or
diagnostic purposes where the meaningful content of the call itself is not
monitored.

18 The condition provides that you should make every reasonable effort
to inform all parties to a call that it may or will be recorded, silently
monitored or intruded into. The particular means by which you choose to do
this are not specified in the condition Acceptable options, depending on
circumstances) might include warning tones, pre-recorded messages, spoken
warnings by the operator or written warnings included in publicity
material, telephone directories, contracts, terms of business, staff
notices, etc.

It may not always be possible to warn first-time callers with whom you
have had no previous contact but what is important is that you have a
systematic procedure in place which provides the necessary information
wherever this is a realistic possibility.

19 You should also maintain a record of the means by which callers have
been warned, which the Director may request sight of. This does not mean
that you have to log each telephone call; rather that should a dispute
arise it will be possible for you to show from records how callers were
being made aware at that time.

20 The condition does not apply where apparatus is being used for the
purpose of law enforcement or in the interests of national security or to
calls involving the national Emergency Organisations. It also provides
that other licensees may be excluded, by means of a Director's consent,
where there are compelling factors that outweigh the normal expectation of
privacy. Such factors might apply where security is a consideration or in
the case of specialised users such as helplines. In accordance with
section 19 of the Telecommunications Act 1984 these consents will be
entered on a register open to public inspection.

21. This condition attempts to secure objectives similar to those which were previously achieved through an approval requirement that equipment
capable of recording, silently monitoring or intruding into telephone
conversations should emit warning tones as these operations took place.
The removal of warning tones was permitted by a General Variation provided
that an alternative form of warning was given. The expectation is that
procedures complying with the General Variation should, generally, also
meet the requirements of this condition.

Extracts from the Telecomms Act 1984

SECTION 1 - DEFINITIONS

4. (1) In this Act "telecommunications system " means a system for the conveyance, through the agency of electric, magnetic, electro-magnetic, electro-chemical or electro-mechanical energey, of-
(a) speech, music and other sounds;
(b) visual images;
(c) signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the form of sounds or visual images; or
(d) signals serving for the actuation or control of machinery or apparatus.

(2) For the purposes of this Act telecommunication apparatus which is situated in the United Kingdom and -
(a) is connected to but not comprised in a telecommunication system; or
(b) is connected to and comprised in a telecommunication system which extends beyond the United Kingdom
shall be regarded as a telecommunication system and any person who controls the apparatus shall be regarded as running the system.

Parts 3 and 4 go into more detail about definitions...

SECTION 5 - REQUIRMENT OF A LICENCE

(2) Subject to the provisions of this section, a person who runs
within the United Kingdom a telecommunication system which he is
authorised to run by a licence granted under section 7 below shall
be guilty of an offence if---
(a) there is connected to the system---
(i) any other telecommunication system; or
(ii) any apparatus, which is not authorised by the licence to be so
connected; or
(b) there are provided by means of the system any telecommunication
services which are not authorised by the licence to be so provided.
(3) A person guilty of an offence under this section shall be liable
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(4) Where the commission by any person of an offence under this section
is due to the act or default of some other person, that other person
shall be guilty of the offence; and a person may be charged with and
convicted of the offence by virtue of this subsection whether or not
proceedings are taken against the first-mentioned person.
(5) In any proceedings for an offence under this section it shall,
subject to subsection (6) below, be a defence for the person charged
to prove that he took all reasonable steps and exercised all due
diligence to avoid committing the offence.
(6) Where the defence provided by subsection (5) above involves an
allegation that the commission of the offence was due to the act or
default of another person, the person charged shall not, without
leave of the court, be entitled to rely on that defence unless,
within a period ending seven clear days before the hearing, he has
served on the prosecutor a notice in writing giving such information
identifying or assisting in the identification of that other person
as was then in his possession.
(7) No proceedings shall be instituted in England and Wales or Northern
Ireland in respect of an offence under this section except by or on
behalf of the Secretary of State or the Director.

SECTION 6 (Exceptions to section 5)

(1) [repealed by the Broadcasting Act 1990]
(2) Section 5(1) above is not contravened by---
(a) the running of a telecommunication system in the case of which the
only agency involved in the conveyance of things thereby conveyed
is light and the things thereby conveyed are so conveyed as to be
capable of being received or perceived by the eye and without more;
(b) the running by a person of a telecommunication system which is not
connected to another telecommunication system and in the case of
which all the apparatus comprised therein is situated either---
(i) on a single set of premises in single occupation; or
(ii) in a vehicle, vessel, aircraft or hovercraft or in two or more
vehicles, vessels, aircraft or hovercraft mechanically coupled
together; or
(c) the running by a single individual of a telecommunication system
which is not connected to another telecommunication system and in
the case of which---
(i) all the apparatus comprised therein is under his control; and
(ii) everything conveyed by it that falls within paragraphs (a) to (d)
of section 4(1) above is conveyed solely for domestic purposes of his;
and references in paragraphs (b) and (c) above to another
telecommunication system do not include references to a
telecommunication system to which subsection (2A) below applies
(whether run by a broadcasting authority or by any other person).
(2A) This subsection applies to a telecommunication system in the case
of which every conveyance made by it is either---
(a) a transmission, by wireless telegraphy, from a transmitting station
for general reception of sounds, visual images or such signals as
are mentioned in paragraph (c) of section 4(1) above; or
(b) a conveyance within a single set of premises of sounds, visual
images or such signals which are to be or have been so transmitted.
(3) In the case of a business carried on by a person, section 5(1) above
is not contravened by the running, for the purposes of that business,
of a telecommunication system which is not connected to another
telecommunication system and with respect to which the conditions
specified in subsection (4) below are satisfied.
(4) The said conditions are---
(a) that no person except the person carrying on the business is
concerned in the control of the apparatus comprised in the system;
(b) that nothing falling within paragraphs (a) to (d) of section 4(1)
above is conveyed by the system by way of rendering a service to another;
(c) that, in so far as sounds or visual images are conveyed by the
system, they are not conveyed for the purpose of their being heard
or seen by persons other than the person carrying on the business
or any employees of his engaged in the conduct thereof;
(d) that in so far as such signals as are mentioned in paragraph (c)
of section 4(1) above are conveyed by the system, they are not
conveyed for the purpose of imparting matter otherwise than to the
person carrying on the business, any employees of his engaged in
the conduct thereof or things used in the course of the business
and controlled by him; and
(e) that, in so far as such signals as are mentioned in paragraph (d)
of section 4(1) above are conveyed by the system, they are not
conveyed for the purpose of actuating or controlling machinery or
apparatus used otherwise than in the course of the business.
(5) In this section---
"broadcasting authority" means a person licensed under the Wireless
Telegraphy Act 1949 to broadcast programmes for general reception;
"business" includes a trade, profession or employment and includes
any activity carried on by a body of persons, whether corporate or
unincorporate;
"vessel" means a vessel of any description used in navigation;
"wireless telegraphy" has the same meaning as in the said Act of 1949.

SECTION 7 (Power to license systems)

(1) A licence may be granted---
(a) by the Secretary of State after consultation with the Director; or
(b) with the consent of, or in accordance with a general authorisation
given by, the Secretary of State, by the Director, for the running
of any such telecommunication system as is specified in the licence
or is of a description so specified.
(2) A licence granted under this section shall be in writing and, unless
previously revoked in accordance with any term in that behalf
contained in the licence, shall continue in force for such period
as may be specified in or determined by or under the licence.
(3) A licence granted under this section may be granted either to all
persons, to persons of a class or to a particular person.
(4) A licence granted under this section may authorise---
(a) the connection to any telecommunication system to which the
licence relates of---
(i) any other telecommunication system specified in the licence or
of a description so specified; and
(ii) any apparatus so specified or of a description so specified; and
(b) the provision by means of any telecommunication system to which
the licence relates of any telecommunication services specified
in the licence or of a description so specified.
(5) A licence granted under this section may include---
(a) such conditions (whether relating to the running of a
telecommunication system to which the licence relates or otherwise)
as appear to the Secretary of State or the Director to be requisite
or expedient having regard to the duties imposed on him by
section 3 above;
(b) conditions requiring the rendering to the Secretary of State of
a payment on the grant of the licence or payments during the
currency of the licence or both of such amount or amounts as may
be determined by or under the licence; and
(c) conditions requiring any person who is authorised by the licence
to run a telecommunication system to furnish to the Director,
in such manner and at such times as he may reasonably require,
such documents, accounts, estimates, returns or other information
as he may require for the purpose of exercising the functions
assigned or transferred to him by or under this Part or Part III
of this Act.
(6) Without prejudice to the generality of paragraph (a) of subsection
(5) above, conditions included by virtue of that paragraph in a
licence granted under this section to a particular person may
require that person---
(a) to comply with any direction given by the Director as to such
matters as are specified in the licence or are of a description
so specified;
(b) except in so far as the Director consents to his doing or not
doing them, not to do or to do such things as are specified in
the licence or are of a description so specified; and
(c) to refer for determination by the Director such questions
arising under the licence as are specified in the licence or
are of a description so specified.
(7) A licence granted under this section specified otherwise than
to a particular person shall be published in such manner as the
Secretary of State or the Director considers appropriate for
bringing it to the attention of the persons for whose benefit
it will enure.
(8) A copy of every licence granted under this section by the
Secretary of State shall be sent to the Director.
(9) Any sums received by the Secretary of State under this section
shall be paid into the Consolidated Fund.
(10) Neither the requirement to consult with the Director imposed
by subsection (1)(a) above nor sections 8(5) and 10(6) below
shall apply to the granting by the Secretary of State of the licence
or licences which, having regard to the provisions of this Act,
require to be granted (whether to British Telecommunications or
to any other person) before the appointed day.
(10A) Before the Secretary of State or the Director decides whether
to grant or revoke a licence under this section which authorises
the running of a telecommunication system to which subsection (10B)
below applies, he shall consult with the Independent Television
Commission.
(10B) A telecommunication system is one to which this subsection applies
if---
(a) any person proposes to provide or is providing, by means of the
system, a local delivery service (within the meaning of Part II
of the Broadcasting Act 1990); and
(b) notice of that fact has been given to the Secretary of State or
the Director.
(11) Where a licence granted under this section to a particular person
includes a provision requiring that person to run any
telecommunication system to which the licence relates through
the agency of some other person, that other person, as well as
the first mentioned person, shall be taken for the purposes of
this section and the following provisions of this Part to be
authorised by that licence to run that system.

SECTION 16 (ENFORCEMENT OF THE ACT)

(1) Subject to subsections (2) and (5) and section 17 below,
where the Director is satisfied that a person who is authorised by
a licence granted under section 7 above to run a telecommunication
system (in this Act referred to as "telecommunications operator")
is contravening or has contravened and is likely again to contravene,
any of the conditions of his licence, the Director shall by a final
order make such provision as is requisite for the purpose of securing
compliance with the condition.

(2) Subject to subsection (5) below, where is appears to the Director -
(a) that a telecommunications operator is contravening or has
contravened and is likely again to contravene, any of the
conditions of his licence; and
(b) that it is requisite that a provisional order be made,
the Director shall (instead of taking steps towards the
making of a final order) by a provisional order make such
provision as appears to him requisite for the purpose of
securing compliance with that condition.

(3) In determining for the purposes of subsection (2)(b) above whether
it is requisite that a provisional order be made, the Director shall
have regard, in particular, to the extent to which any person is likely
to sustain loss or damage in consequence of anything which, in
contravention of the relevant condition, is likely to be done, or
omitted to be done, before a final order may be made.

(4) Subject to subsection (5) and section 17 below, the Director
shall confirm a provisional order with or without modifications if -
(a) he is satisfied that the telecommunications operator is
contravening, or has contravened and is likely again to
contravene, any of the conditions of his licence; and
(b) the provision made by the order (with any modifications) is
requisite for the purposes of securing compliance with that
condition.

(5) The duties imposed by subsections (1) to (4) above shall not
apply where the Director gives notice that he is satisfied -
(a) that the duties imposed on him in section 3 above preclude
the making of a final or provisional order or, as the case
may be, the confirmation of the provisional order; or
(b) that the contraventions or apprehended contraventions are
of a trivial nature;
and a notice under this subsection shall be given by publication
in such manner as the Director considers appropriate for the purpose
of bringing the matters to which the notice related to the attention
of persons likely to be affected by them and by sending a copy of
the notice to the telecommunications operator.

(6) A final and provisional order -
(a) shall require the telecommunications operator (according to
the circumstance of the case) to do, or not to do, such things
as are specified in the order or are of a description so
specified;
(b) shall take effect at such time, being the earliest practical
time, as is determined by or under the order; and
(c) may be revoked at any time by the Director.

(7) In this section and sections 17 and 19 below-
"contravention", in relation to any condition of a licence
includes any failure to comply with that condition and
"contravene" shall be construed accordingly;
"final order" means an order under this section other than
a provisional order;
"provisional order" means an order under this section which,
if not previously confirmed under subsection (4)
above, will cease to have an effect at the end of
such a period (not exceeding three months) as is
determined by or under the order.

(8) References in this section to conditions of a licence do not
include references to conditions relating to the applications to
the telecommunication code.

SECTION 19

(1) The Director shall keep a register of licences granted
under section 7 above and final and provisional orders at such
premises and in such form as he may determine.

(2) Subject to any direction given under subsection (3) below, the
Director shall cause to be entered in the register the provisions of -
(a) every licence granted under section 7 above and every
modification or revocation of, and every direction or
consent given or determination made under, such a licence; and
(b) every final or provisional order, every revocation of such an
order and every notice under section 16(5) above.

(3) If it appears to the Secretary of State that the entry of any
provision in the register would be against the public interest
or commercial interest of any person, he may direct the Director
not to enter that provision in the register.

(4) The register shall be open to public inspection during such
hours and subject to payment of such fee as may be prescribed by
an order made by the Secretary of State.

(5) Any person may, on payment of such few as may be prescribed by
an order so made, require the Director to supply to him a copy of
or extract from any part of the register, certified by the Director
to be a true copy of extract.

(6) Any sums received by the Director under this section shall be
paid into the Consolidated Fund.

Thank you to Andy Emmerson for TSL extracts and Mike Todd and Peter Ileive for the Act extracts.
This information is presented in good faith but not responsibility
is taken for the accuracy of the information contained herein.

This document may NOT be reproduced without permission.
You can refer to the URL : http://www.seg.co.uk/telecomm/record.htm